Friday, 30 November 2012

Below I address several similar questions regarding whether churches and other religious organisations will be forced to carry out same-sex marriages against their conscience.

Will the ECHR force religious bodies to conduct same-sex marriages?
During the recent Government consultation on introducing civil equal marriage the Church of England and the campaigning group Liberty gave responses. Given one was against and one was for, I thought it'd be interesting to look at what the legal opinions they relied upon in their decision actually said about the ECHR. Let us start with the Church of England, whose response and legal opinion can be found in full here.

If the proposal to redefine marriage were to be implemented, it must be very doubtful whether limiting
same-sex couples to non-religious forms and ceremonies could withstand a challenge under the
European Convention on Human Rights. Page 10

I feel this paragraph is the cause of a great deal of confusion. It is clarified in depth on the link above. The Church has quite a problem, and I very much share their concerns, with the Government proposing to create two-tiers of marriage in separating the legal concept of religious and civil marriages. Their concern shown above relates to this problem and what they are suggesting is that IF the Government only legislates on civil marriage equality they will leave that law open to challenge (the success of the challenge remains questionable).

If opposite-sex couples were able to enter into the (newly-defined) legal institution of
marriage in accordance with either religious or civil forms and ceremonies but same-sex
couples were able to enter into that institution only in accordance with civil forms and
ceremonies that, of itself, would be unlikely to amount to a breach of article 12 because
such an arrangement would not deprive same-sex couples of the substance of the right to
marry.

But there would be a serious prospect of a successful challenge to that arrangement
under article 14 taken in conjunction with article 12, on the basis that same-sex
couples were being discriminated against in relation to matter that was within the
ambit of article 12.

No, they don't provide much evidence for the "serious prospect of a successful challenge" but I think their legal reasoning is pretty good here. Clearly the Government should pursue full equal marriage (religious and civil) rather than focus on civil marriage alone. I hope their legal opinion has influenced the Government into expanding its proposals accordingly.

But these are NOT arguments stating churches will be forced to perform equal marriage. The Church then moves on to arguing over if the Government allows religious marriage how this might affect them but that is more an issue of domestic legislation and I'll look at it in its own section below.

So the Church of England's legal opinion seems to be that the ECHR may well not be amenable to denying same-sex couples, and the religious organisations that support them, religious equal marriage. But nowhere do they suggest the ECHR might force religious organisations opposed to equal marriage to perform same-sex marriages.

In my view, therefore, any requirement upon a church or religious organisation to
conduct same-sex marriages, contrary to the religious convictions of its members’,
would violate their Article 9 rights (and those of any person compelled to take part, for
example a minister).

Merely permitting the solemnisation of same-sex marriages on religious premises, as
with opposite–sex marriages, would not, of course, intrude upon the Article 9 rights of
any religious organisation.

Ergo, the European Convention on Human Rights should protect the rights of those who oppose equal marriage rather than force them to do things against their will.

The ECHR covers many countries that offer marriage equality and some of those have established churches. I've done lengthy searches through sources in both English and in the native tongues of the countries concerned, but have yet to find one case of the ECHR becoming involved with this question once equal marriage has been legislated for by a national Government. Will domestic laws force churches to carry out equal marriage?

It is extremely difficult to argue one way or another on this as the relevant legislation has not even been proposed yet. However some have raised this as a concern as well. My main argument would be that any domestic law can be amended by the new marriage equality bill so as long as this is dealt with properly there should be nothing for opponents to worry about.

Karon Monaghan QC, on behalf of Liberty, looked at this in some detail.

In particular, I am asked to consider the following questions:

a. Were Parliament to enact provisions that would allow religious bodies
willing to do so to conduct legally binding marriages in the same way that
they can currently conduct marriages under Part III, Marriage Act 1949,
would the decision of a body opposed to same-sex marriage not to do so, or
the refusal of an individual minister not to conduct such a ceremony, be challengeable under the Equality Act 2010, under another antidiscrimination provision or on human rights grounds?

b. If so, would a provision similar to section 6A(3A) Civil Partnership Act 2004
be sufficient to protect a religious body and/or individual members of the
clergy from such legal challenges?

c. Are there any additional safeguards that could be built into the legislation to
forestall such a risk?

d. Would provisions similar to those in the Marriages and Civil Partnerships
(Approved Premises) Regulations 2005 be adequate to prevent a maverick
clergy member conducting a same-sex marriage that might arguably be
legally binding?

e. Again, are there any additional safeguards that could be built into the
legislation to mitigate the risk?

f. Would the Article 9 rights of religious bodies that do not wish to conduct
same-sex marriages on doctrinal grounds reinforce any safeguards built into
the legislation?

She then summarises her responses here:

a. A refusal by a minister or a body opposed to same-sex marriage to conduct
same - sex marriages would not violate the Equality Act 2010 so long as they
could demonstrate that to do so would be in conflict with the strongly held
convictions of a significant number of the religion’s followers. Further, it is
very unlikely that a refusal to conduct a same-sex marriage in such circumstances would unjustifiably violate the Convention rights of any other
person, in particular those of a same-sex couple seeking to marry.

b. For the avoidance of doubt, provision could be made in any legislation
(permitting same-sex marriage) analogous to that seen in s6A(3A), Civil
Partnership Act 2004.

c. Again for the absolute avoidance of any doubt, the Equality Act 2010 could
be amended so as to add a clause to Schedule 23 (paragraph 2(14)) making
it clear that nothing in the Equality Act 2010 “should be taken to require a
religious organisation or minister to solemnise a same-sex marriage if they
do not wish to do” or similar.

d. Provisions similar to those in the Marriages and Civil Partnerships (Approved
Premises) Regulations 2005 would be adequate to prevent a maverick clergy
member conducting a legally sanctioned same-sex marriage.

e. No further safeguards are required to address the “maverick clergyman”
other than those described above (requiring or dispensing with consent in
each case at the behest of the governing authority) and those that are
ordinarily and already found in this context.

f. The Article 9 protection afforded religious organisations is strong. This too
would provide real safeguards to a religious organisation that did not wish
to conduct same-sex marriages on doctrinal grounds.

The Church of England looks at this area too, being that it is important to them due to the complex legislation covering our established church and its duties.

These assurances are all based on the position being as proposed in the consultation paper: i.e. the
limitation of same-sex couples to non-religious forms and ceremonies. If, however, that position were
not upheld – either because it was held to be unlawful by the courts or as a result of changes to the
applicable legislation during its passage through Parliament or by way of subsequent amendment – the
basis for those assurances would fall away.

In that scenario a considerable amount of further legislative provision would be required in order to
protect the position of the Church of England and other religious bodies. In particular the whole range
of rights and duties that exist in relation to marriage and the Church of England would have to be reexamined.

Even if a mutually acceptable legislative solution could be found by way of limiting such rights and
duties, it cannot be assumed that any such solution would itself withstand subsequent challenge,
whether in our domestic courts or in Strasbourg. The ultimate outcome for both Church and State
would be quite uncertain.

The Church of England's considered response to this then is that it'll be a difficult process in ensuring their rights are protected but possible. Doesn't the Church of England have a legal responsibility to marry any eligible couple in their own parish?
Much has been made of this responsibility by those opposed to equal marriage and the Church of England's legal opinion mentions it too.

Anyone who is resident in England has a legal right to marry in his or her parish church irrespective of
his or her religious affiliation and the minister of the parish (the rector, vicar or priest in charge) is
under a legal duty to conduct the marriage.
2
The existence of this right is recognised by the Marriage
Act 1949 (which governs the procedure for all marriages in England and Wales).

I have a question regarding this however. If they have a legal right, how can the Church of England legally turn away divorcees (at the discretion of the minister involved)? I feel the situation is a little more complex than is being presented and that the pertinent laws covering the Church of England in this regard can be amended if necessary.

Feel free to fire back examples that show I'm wrong. I've written this post mainly out of a sense of frustration with opponents failing to provide proof for their claims. I decided to seek out the evidence myself and, after so doing, feel a lot more confident that they are wrong. However, I will be very happy to hear considered opposition to what I've presented here!

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I even have respect for those who oppose equal marriage because it goes against their personal beliefs. Do not think I don't understand where you are coming from even if I think you are completely wrong and that attempting to enforce your beliefs on my relationship isn't something I find endearing.

But there is one anti-equality argument that I cannot put up with. It is the hypocritical "faux-libertarian" argument most typically spouted by UKIP supporters. I've dealt with this before in a rather light-hearted look at David Coburn's Pink News article back in March (my commentary can be found here). When, earlier this month, UKIP released their latest comments on their marriage equality policy I didn't feel the need to elaborate further but today I've seen David Coburn and others using his article and his sexuality to defend that same policy. That, I felt, needed a response.

They start their 15th November 2012 post bigging up their libertarian credentials with the bizarre comment that this is why they support civil partnerships. Civil partnerships are a Government issued contract and are in no way "libertarian"!

They then summarise the Government's current proposals (which may change shortly, I admit) to only legislate on equal civil marriage. They rightly point out that many LGBT people are religious and may find these proposals unsatisfactory and may even take the case to the courts to allow them to marry in religious premises. This I understand completely, and suspect it is quite likely that a couple may well do this in these circumstances and probably with the support of Liberal Judaism, Unitarians and the Quakers.

That is when they make a few leaps of logic and assumption without providing evidence.

1) They suggest that this hypothetical court case would lead to the Government FORCING churches to marry same-sex couples.

That is quite a leap indeed, surely you would think that if the case was successful the Government is more likely to open up religious marriage equality whilst allowing continued protection for the dissenting religious organisations? Personally, based on fact that "civil marriage" is more an imaginary concept than a legal one I suspect the Government may well include provisions allowing this in the original legislation.

2) This being UKIP, they suggest these authoritarian changes would be foisted on the country by the evil European Court of Human Rights.

I quote:

We believe that, give.n (sic) the current nature of the European Court of Human Rights' attitude to such matters, there is a very strong likelihood that the Court at Strasbourg will agree that it is an unlawful discrimination on those grounds and order the United Kingdom to introduce laws which will force Churches to marry gay people according to their rites, rituals and customs.

Hmm... what are the current attitudes of the ECHR towards equal marriage? They do not feel the need to compel countries to give marriage rights to LGBT people. Channel 4's FactCheck does a good summary on this. They are right to point out that several European countries have introduced equal marriage and there has be no similar legal case as predicted by UKIP. It's all pointless speculating and only serves to remind us that the law should be carefully written to protect religious liberty (for both those who want to marry same-sex couples and those who don't).

If the Government has it in mind to forbid Churches from marrying gay people, that would be a monstrous piece of tyranny: let Churches and faiths decide for themselves.

Don't tell UKIP this as they might faint, but that is the current situation! Allowing Churches and faiths to decide for themselves involves giving them the legal right to marry same-sex couples but not forcing them to use it. This sort of mind-bending logic really does make me wonder who wrote this policy and whether it is more from opportunism than belief in opposing equal marriage.

After this they continue to moan and speculate about how evil forcing churches to marry same-sex couples would be. Based on no evidence. Nothing. Nada. Oh and then they say "It is not a priority" (put a pound in the "Overused Argument" jar please).

It is a policy that flies in the face of libertarianism, lacks critical thinking and appears to be written by someone who doesn't really oppose equal marriage but just wants to appeal to people who do. It is extremely hypocritical for UKIP to complain about the Government not allowing religious organisations to marry same-sex couples at the same time as opposing equal marriage. It is a conflicting and hastily written piece.

1) oppose marriage equality completely on the basis that same-sex relationships are "different" to opposite-sex ones
2) step back from the debate and make a libertarian case for marriage reform.
3) embrace marriage equality as a marker on the long road to liberty.

Their current policy shows them up as exploitative, ideologically dodgy politicians of the worst kind.

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Thursday, 22 November 2012

I've always been open about the fact that I unexpectedly fell into supporting marriage equality. Labour pissed me off. There I was happily being all radically queer in my early twenties and along they came and instituted civil partnerships. At the time I found the idea of marriage to be cold and dreary, yet Labour had some how managed to make formalised same sex relationships seem even more so! I wasn't going to put up with that.

Sometimes I get so caught up in monitoring the arguments, spreading news and insulting Labour that I forget about what I really want. I was thinking about that on the way to work the other day. Personally, I don't really feel the need for Government affirmation of my relationship to my beloved Jim. I am, and this may surprise you Dear Constant Reader, an old romantic when it comes to the concept of marriage. To me it is more important that Jim and I believe we are married. Even though I'm certainly not Christian any longer and I've, with reluctance, left my pagan ways behind me, I'd love a sweet little ceremony somewhere with family and friends. But it doesn't need to be led by any official figure.

In fact, and this is where I get controversial, I find the concept of the Government and institutions giving married partners benefits above and beyond what single and unmarried couples get a bit disturbing. I want the Government out of relationships entirely. People should be free to associate, contract with and love whomever they wish (or to not do any of those things). Marriage should be something people and organisations sort out themselves for whatever purpose they want it for. They can be married in their own eyes, in the eyes of others or in the eyes of their God(s).

I've dealt with this before, and explained why I still fight for equal marriage. But I do always feel very two-faced. It helps that anti-equality activists often use arguments against romance to defend their policies. They often believe marriage between one man and one woman is a "social good" and this is why it alone deserves Government backing. This keeps me on the straight and narrow and reminds me that the fight for equal marriage is one that's pushes back against such an authoritarian understanding of Government. I do not want a Government that decides to reward one group over another. Government should be there only to arbitrate disputes, defend property and persons against attack and support those who really can't support themselves. It is not there to socially engineer a utopia and especially not one particular version of utopia.

I'm in too deep to hold myself aloft from what a younger version of me might have considered a petty skirmish. When marriage equality becomes reality I may well shed tears and I will most certainly, Jim willing, head down to our local registry office to formalise our relationship. It shall be a happy day, I have no doubt.

But I shan't stop there. I'll still be writing letters and bugging people for many years to come in the hopes of one day getting a little closer to the dream of a country where people get to love how they wish and no one feels the need to get involved in their relationship.

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Sunday, 18 November 2012

Facebook has a lot to answer for. But so does the Trafford Housing Trust. An idiot posted on his Facebook aghast that the Government would dare force equal marriage upon churches (the plans aren't even about religious organisations!). An even bigger idiot decided that this person deciding to express his personal opinion on his personal social media page in his personal time constituted a reason to demote the original idiot.

THT should be ashamed of themselves. Their policies are an insult to free speech and have succeeded in bringing the marriage equality movement into disrepute through association with such an abuse of power. But the case does now strengthen freedom of speech and belief. It flies in the face of the accusations from the anti-equality crowd that courts will send them all to a gulag for daring to speak their mind.

1) their position implies a school shouldn't sack (or at least discipline) a member of staff who refuses to do their job.
2) it flies in the face of the previous policy of anti-equality activists that was disgusted that the previous Government would force them not to sack LGBT people (and force them to consider hiring that person if they were the best candidate for the job).
3) it is not like they haven't previously tried to sack LGBT teachers in this country or actually sacked them in other countries

Personally I think it would be a rather authoritarian and unnecessary step for a school to sack someone for this reason. I think it is healthy that kids get different view points. But I also think schools have a right to sack teachers and staff that don't toe the line on what they teach children. I'm not saying a Catholic school should be allowed to sack a gay teacher, nor that a secular school should be able to sack a Catholic teacher. But if that teacher doesn't follow the lesson plans and school curriculum then they aren't doing their job and should be disciplined in the appropriate way.

If a teacher "promoted" equal marriage in a private Catholic school should that school be allowed to sack them? That is the question one should ask anyone who spreads this sort of fear. I'd be interested to hear their answers.

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“To make sure there is no element of doubt, we would be legislating to protect the rights of religious institutions to continue to have freedom on this matter.”

But is she really dedicated to religious freedom? Given the proposals remain only about "civil marriage" (a novel legal concept I understand) doesn't she feel the proposals themselves aren't supportive of religious freedom?

If Maria Miller and the Coalition Government really believe in religious freedom they will put forward proposals for full marriage equality with the correct safeguards in place to protect all those unwelcoming groups who want nothing to do with it. Otherwise their claims to be concerned about religious freedom will be shown to be no more than subservience to certain religion's views over others.If you feel benevolent and particularly generous, this writer always appreciates things bought for him from his wishlist

Friday, 9 November 2012

I know, I am always the first to judge. When it comes to people like Nigel Evans or Chris Bryant, I often find it hard to forgive as well. If you found someone describing me as an unhinged radical marriage equality ranter, I think there would be plenty of evidence to back that up. Given that it affects me personally, it is hardly surprising I can get a little overly emotional on this issue.

However, I feel like so much progress has been on this issue, I can afford to try and be better. More constructive and more ready to listen. Don't get me wrong, I still think "compromise" is a dirty word but I've always been willing to defend religious rights on this issue so I'm not really compromising here.

"It is absolutely right for the state to define the rights and status of people cohabiting in different forms of relationships, including civil partnerships."

"We must have no truck with any form of homophobia in any part of the Church. The Church of England is part of the worldwide Church, and has responsibilities that come from those links. What the Church does here deeply affects the already greatly suffering churches in places... like Nigeria."

"I am always averse to the language of exclusion, when what we are called to is to love in the same way as Jesus Christ loves us. Above all in the Church we need to create safe spaces for these issues to be discussed in honesty and in love."

Whilst some have already held this up as proof he is a bigot who doesn't support marriage equality, I think this is suitably vague enough to allow some flexibility on the issue of civil marriage too. And it is very important, far more important than marriage equality, that the Archbishop starts to tackle the dangerous homophobia of Anglican churches abroad, especially in Africa (and most especially Uganda where Anglican bishops have been supporting the "Kill the gays" bill). There is hope here, and I'm prepared to let him have the benefit of the doubt for now.

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Thursday, 8 November 2012

Phillip Schofield, in an ill-advised stunt, "confronted" David Cameron with a list of names of people suspected of paedophilia (by people online). I've no evidence they aren't but I suspect Schofield has no evidence they are. If he does he's best talking to the police about his accusations. I'm pretty sure David Cameron already knows who is suspect of paedophilia at this point, I doubt his advisers have been slow to fill him in given how big a story this has become.

"There is a danger, if we're not careful, that this could turn into a sort of witch-hunt, particularly against people who are gay and I'm worried about the sort of thing you are doing right now - giving me a list of names that you've taken off the internet."

Warning against witch-hunts, which let's face it aren't that unusual in this country when it comes to paedophilia, is sensible. And people, especially online, do have a habit of accusing gay and bisexual men (or even heterosexual men accused of being gay) of paedophilia so warning against this is sort of sensible.

I was concerned that, in bringing this up, Cameron may well be giving just the angle to the story certain media outlets would love to have to spin this scandal from paedophilia to homosexuality (and some of the accusations so far have been of men with boys over 16 but under the age of consent at the time when the sex occurred).

Unfortunately his comments have been taken in the wrong way (or used to politically attack him) by many on Twitter. They are accusing him of linking homosexuality and paedophilia. Which he did but only in warning against linking them!

It is sad we have come to the point where we attack someone who is trying to protect LGBT people from undeserved accusations, probably some of his colleagues and friends who will have been named but may not be guilty. People online really do make these connections, often in vivid and disturbing detail. Just read some of the stuff on Guido Fawkes website sometimes and you'll see how much homophobia is expressed through paedophilia jokes. David Cameron was not wrong and I am pleased he has stood up and called for reason and caution on what is obviously a very emotive subject.

I'm not saying that we shouldn't rigourously investigate allegations of paedophilia. But we need to do better than rumours and innuendo. And when someone tries to defend LGBT people, let us not cut them down just because it suits our political agenda. Even if that someone is a Tory Prime Minister.

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Now it wasn't all bad. We got Prop 8: The Musical, which has Kathy Najimy in it. That almost made it all worth it.

I jest, of course, but it was US election day yesterday and, along with the Presidential election and various other federal and state elections, there were 4 states holding marriage equality pertinent votes.

In Maine an initiative to introduce marriage equality (into a state that had previously voted it down in a referendum) was put to the voters. In Washington and Maryland successful legislation was put to a popular vote before being implemented. In Minnesota there was an attempt to constitutionally redefine marriage as between a man and a woman.

In Maine the initiative passed, finally bringing to an end NOM's argument against marriage equality; "Gay marriage has never been approved in a referendum of the people!".

The earliest gay and lesbian couples could marry will likely be early January. The Secretary of State's Office has 20 days to certify results, Gov. Paul LePage has 10 days to approve them, and after that, there's a constitutionally mandated 30-day waiting period for the law to take effect, according to the Secretary of State's Office.

In Minnesota the attempt to ban equal marriage was defeated in a closely fought contest. Despite this not having any material effects on the lives of Minnesotan LGBT folk, it does have the feeling of being a watershed moment. It feels like the turning of the tide.

The results are still not fully in for Washington. At the half way mark, the yes to marriage equality side are winning but it's close and there are no guarantees. Looking at the breakdown I think there are still a fair few anti-equality votes to come in. But if it is successful Washington will become the 9th state of the Union to approve marriage equality (almost 20%!) and marriages could start as early as December the 6th!

Slightly more frivolous stuff but last night Big Brother viewers chose the latest Australian winner and he promptly proposed to his boyfriend live on air (his boyfriend said yes!). Hopefully this will raise the profile of the campaign for marriage equality there.

But wait there is more....

Remember Prop 8? Well it was overturned by the courts in California as being unconstitutional. It has made its way slowly up the chain and on November 20th it (along with several other equal marriage cases) will be considered by the United States Supreme Court. We should hear on November 26th if they make a decision and if so what that might be.

A lot has changed in 4 years. Let's hope it keeps on changing.

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Saturday, 3 November 2012

Four years ago I declared my support for Barack Obama. I truly believed he would return the USA to something more resembling Clinton's America (well the imaginary Clinton's America in my head anyway) than Dubya's America.

Regardless of any benefits he brings, Obama has continued to destroy the very things I loved to imagine made the USA great. I cannot bring myself to support him.

So you support Mitt Romney then? I hear the angry lefties cry.

Of course I don't. Yes, as someone who enjoys Mormon history and theology I think it would be historically interesting to have a Mormon in the White House. But do I believe Mitt Romney would be any better than Obama? No I do not and on marriage equality, abortion etc. I think he could be a whole lot worse.

It is depressing but the choice facing most Americans is between frying pan and fire.

But it does not have to be this way. They could vote for Gary Johnson. He's a candidate with really strong beliefs on individual liberty. I know his economic views won't go down well with the lefties but at least he's consistent and doesn't want to kill anyone. Not bad for a US Presidential Candidate!

So this blog comes out for Gary Johnson in 2012, but there is little hope of him getting anywhere near the President's office. Which is a shame for America.

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